Appellate Attorneys Get Pass From Court of Appeals

The Court of Appeals held that an attorney could not be sued for legal malpractice, even if the attorney missed the deadline for filing a Claim of Appeal.  The Court of Appeals in MacDowell v Houghtaling, unpublished per curiam opinion, issued August 23, 2016 (Docket No. 328902), reasoned that the plaintiff could not establish the element of proximate cause based on the Court of Appeals' prior denial on a delayed application "for lack of merits in the grounds presented."  In reaching this holding, the Court is giving attorneys who commit legal malpractice a free pass - so long as they file a delayed application. The malpracticing attorney could even intentionally tank the case in the application and the leave denied order would forever insulate the attorney from liability.

The Court of Appeals reached this holding even though:

• 85% of all applications are denied.

• The Court of Appeals employs standard language for leave denied "on the merits" of the grounds presented in all denials except those that arise from interlocutory appeals.

• Applicant undergo a different review process than appeals by right.

• Oral Argument is not permitted on Application, thus denying the attorney an opportunity to advocate for the case.

• The Court of Appeals does not have the trial court record when it decides an application, relying only on documents supplied by the Appellant.

• Applications are decided by 3 judges from single district while Appeals by right are decided by a random draw of 3 out of 27 judges of the Court.

Stay tuned to see if this case sparks the interest of the Michigan Supreme Court.